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LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
National Native Title Tribunal
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LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
National Native Title Tribunal
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LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
(Senate-Monday, 24 May 2010)
Administrative Appeals Tribunal
Australian Human Rights Commission
Australian Law Reform Commission
Australian Transaction Reports and Analysis Centre
Classification Review Board
Mr D McDonald
High Court of Australia
Family Court of Australia
Mr R Foster
Federal Magistrates Court
Federal Court of Australia
ACTING CHAIR (Senator Barnett)
National Native Title Tribunal
Australian Security Intelligence Organisation
- Attorney-General’s Department
- ATTORNEY-GENERAL PORTFOLIO
Content WindowLEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE - 24/05/2010 - ATTORNEY-GENERAL PORTFOLIO - National Native Title Tribunal
CHAIR —Welcome to the estimates hearing. Ms Fryer-Smith, do you wish to start with an opening statement?
Ms Fryer-Smith —No, thank you, I do not have an opening remark.
Senator BOSWELL —I am not sure whether this is the space to ask these questions—it may be the other bit—but I will try my arm. Are you satisfied that Queensland wild rivers declarations are consistent with the Native Title Act?
Ms Fryer-Smith —Thank you for that question, but I do not know that it is appropriate for me to answer it. That is a policy question.
Senator BOSWELL —Maybe I have to ask that in Indigenous law and justice.
Senator BARNETT —There may be a possibility of Ms Leon, on behalf of the department, expressing a view with respect to that. If not, she could indicate the best person within the department to answer the question, because it is a very good question.
CHAIR —It might be a good question, but I am not entirely sure it is related to the budget estimates.
Senator BOSWELL —There might be some dollars involved.
Senator BARNETT —There are certainly some dollars involved.
Ms Jones —In terms of the wild rivers legislation—the Queensland Wild Rivers Act 2005—it is our view that it does not affect native title rights and interests. The act itself specifically provides that wild river declarations, as given effect under other Queensland acts, cannot directly or indirectly limit a person’s native title rights or interests.
CHAIR —I have just been given advice from the clerk assisting me that this is currently a bill that is before the Senate and the subject of a current inquiry through the Senate. Therefore, questions should be directed through that Senate inquiry process.
Senator BOSWELL —This is a bill that will be coming up—you are correct in that—but it is one about which we are not going to get a chance to ask questions of the Attorney-General’s Department through the committee.
CHAIR —If the committee wishes to hear from the Attorney-General’s Department, that is a matter that can be raised at a committee meeting. Senators seeking to have the Attorney-General’s Department as a witness can request that. If there are to be further public hearings, that could well happen. But at this stage we are not due to report on that bill until 30 June.
Senator BOSWELL —I am sure there are other precedents being created where you can ask questions in the estimates committee of various departments.
Senator BARNETT —If Senator Boswell confined his questions, for example, to the impacts or otherwise of the Queensland legislation without making any reference to the bills before the parliament—in the House of Representatives and the Senate, as in those private member’s bills—then I think that would assist to ensure that we met standing orders so that there was not a crossover.
Senator Stephens —I think that the advice from the secretary is very wise and represents the advice from the Clerk.
Senator BOSWELL —I will ask about the Queensland legislation.
CHAIR —You can try, Senator Boswell, but the officers before us are representing the federal Attorney-General’s Department and they have the current budget and portfolio budget statements before them. Give us one of your questions, and we can only facilitate as best we can.
Senator BOSWELL —Has the Attorney-General’s Department checked the Queensland wild rivers legislation to find out whether it is consistent with native title?
CHAIR —I think Ms Jones just answered that and I have given my view as the chair.
Ms Leon —I think Ms Jones has already answered that question to the extent that the Attorney-General’s Department can comment on the Queensland legislation.
Senator BOSWELL —Ms Jones from the Attorney-General’s Department—I assume it is the same Ms Jones—told the legal and constitutional affairs committee on 30 March that you have had cause to look at the legislation.
Ms Leon —Yes, and Ms Jones, who is sitting here now, has just answered the question about the relationship between the Native Title Act and the Queensland legislation.
Senator BOSWELL —Ms Jones, do you think that everything is in order?
Ms Jones —As I answered before, in our view the Queensland Wild Rivers Act 2005 does not affect a person’s native title rights or interests. There is a provision in that act—section 44(2)—that explicitly indicates that it cannot directly or indirectly limit a person’s native title rights or interests. I would further add that section 13A of Queensland’s Acts Interpretation Act provides that future legislation only affects native title if it expressly provides. The Wild Rivers Act does not make this express provision. That leads to our view that it does not affect native title rights and interests.
CHAIR —Have you got questions about the PBS and the budget, Senator Boswell?
Senator BOSWELL —Have you looked at the declaration—not the act—to determine whether or not they are future acts under the Commonwealth native title legislation? What work has been done on that and what conclusions were reached?
CHAIR —Perhaps that is a matter that your colleagues may want to put on notice to the department through our inquiry process.
Senator BOSWELL —No, I am asking about the Queensland act, not the federal act.
CHAIR —But the act we are currently inquiring into is related to the Queensland act—very much related to the Queensland act.
Senator BOSWELL —It may be, but I am not asking about a federal act. I am asking about the Queensland act.
Ms Jones —Because we are of the view that the Wild Rivers Act does not affect native title rights and interests, the future act regime of the Native Title Act is not enlivened by determinations made under the Wild Rivers Act.
Senator BARNETT —Meaning it is not abrogated?
Ms Jones —It is not necessary to comply with the future act regime, because native title rights and interests are not affected.
CHAIR —We have the National Native Title Tribunal before us. I am going to ask for questions on that.
Senator BOSWELL —Before that, I ask: is there any money being spent to investigate this Queensland act?
Ms Jones —In terms of departmental resources?
Senator BOSWELL —Yes.
Ms Jones —To the effect that we have spent time preparing for our appearance before the Senate committee inquiry, we spent time on that.
Senator BARNETT —How many officers have expended time undertaking that research, and who?
Ms Jones —I have, due to my appearance, and so has the assistant secretary for the National Title Unit, Tamsyn Harvey. In terms of other people within her team, I would have to take that on notice.
CHAIR —Ms Jones, it is not necessary to provide who.
Senator BOSWELL —That was the question.
CHAIR —It might well be the question, but it is not in order. We do not specifically identify single public servants, and Senator Barnett well knows that, when it comes to work that has been undertaken.
Senator BARNETT —You do not have to identify them by name.
CHAIR —Perhaps you could tell us the number of people who were involved in preparing that submission for our inquiry.
Ms Jones —I will provide on notice the precise number of people who contributed.
Senator BARNETT —And their position. We are being a little particular.
Ms Jones —I will take that on notice.
Senator McLUCAS —It is not usual, Senator Barnett, for a question to identify a particular public servant by name. I think it would be appropriate for Ms Jones to provide us with the number of people who worked on that submission to the inquiry and also in general the level at which they work within the Public Service. I think that is a legitimate question. It has been a matter of form for all the time that I have attended Senate estimates that we do not ever try to identify a public servant by name.
CHAIR —That is right. We do not identify names. Could I also say, as chair, that this committee substantially validates the work that it does only through the appearances before it of officers from the Attorney-General’s Department time after time—in fact, there were 42 reports in 2009, if I am correct. It is most unusual for senators to ask how many people, the time and the resources. I have not known that to occur over the past 2½ years. However, if that is the information that is required, you will need to take that question on notice.
Senator Stephens —I remind senators that Ms Jones gave the evidence to this committee in March, when the committee was inquiring into the private member’s bill from the House of Representatives. As she said today, her evidence has not changed; all her evidence is on the public record. Senator Boswell can go to the Hansard record and see what is there. It is Queensland legislation.
CHAIR —We have a current inquiry in front of us. We have asked the view of the Clerk about whether this questioning should proceed. I remind senators of and draw their attention to the estimates process and questions relating to the portfolio budget statements. We have officers of the National Native Title Tribunal here waiting to answer your questions.
Senator BOSWELL —There is one question that I want to ask: what would trigger an investigation in to state instruments that were suspected of being inconsistent with the Commonwealth Native Title Act—and I refer to the Attorney-General’s public concern? What would make you look in this act?
CHAIR —With all due respect, Senator Boswell, I think they have looked at this act, and they have provided us with evidence from our inquiry. Unless the officers have any other information they might need that clarified.
Senator BOSWELL —You seem to be terribly worried about this. I know it is a particular worry to members of the Labor Party.
CHAIR —It is not a worry to the Labor Party, Senator Boswell. We have a process at estimates. That process does not go to questions about a piece of legislation that is currently before this committee and that is being inquired into. Secondly, the Attorney-General’s Department has already provided evidence to the committee. If you want to ask the Attorney-General’s Department to come back and reappear before the committee in relation to that inquiry, let us do that. However, we have other areas that need questioning tonight, and we have other people waiting here to be asked questions.
Senator PARRY —Senator Boswell has asked a question about what it would take to trigger an action from the department. I am sure his supplementary question to that question, once it is answered, would be, at what cost it would be to the department if that action was triggered, which fits completely within the realm of budget estimates.
Senator McLUCAS —Can I suggest that Senator Boswell’s question is speculation? It is a general question about what might happen if there were an act in a state or a territory somewhere that would make the Attorney-General’s Department have a look at it. It is totally speculative, and I do not think it is appropriate for the officers to even go there.
CHAIR —Thank you, Senator McLucas. I will call for order now and read a resolution passed by the Senate in 1999 and adopted in a report by the Procedure Committee:
... the Senate delineated the scope of questions at estimates hearings as “any questions going to the operations or financial positions of departments and agencies”. While this is a very wide ambit ...
the previous Clerk of the Senate, Mr Evans, ruled that he did
... not think that it extends to questions about provisions of bills, for example, questions about the meaning, purpose, intention or effect of clauses in bills.
I will say again that if you have questions to do with estimates and the current documents before us, please ask those questions or we will move on.
Senator BOSWELL —Let me ask my question this way: what would it cost to trigger an investigation into a state instrument that was suspected of being inconsistent with the Commonwealth Native Title Act? I refer to your previous concerns.
Senator McLUCAS —Can I rephrase that question for Senator Boswell?
Senator BOSWELL —No.
Senator McLUCAS —The question in fact is: how long is a piece of string? It is totally speculative.
CHAIR —Senator McLucas! Ms Leon, do you have an answer to this question?
Ms Leon —I do not believe I would be able to answer that in the abstract because the question of how much an investigation by the department would cost would depend on the complexity of the matters into which we were inquiring, the nature of the legislation, and the number of people that would be involved. It is not a question I think we could answer in the abstract.
Senator BOSWELL —But what would trigger it?
Ms Leon —If you are asking a question in the specific rather than in the abstract about whether we have looked at this particular piece of Queensland legislation, I think Ms Jones has already answered that to the effect that we have. We have provided this committee, both tonight and in its inquiry into the private member’s bill, with the department’s views about the relationship between the Queensland legislation and the Native Title Act.
Senator BOSWELL —Mr Noel Pearson—
CHAIR —Senator Boswell, as chair, I am going to rule—
Senator BOSWELL —Then I will have to call for the Senior Clerk. We will have to get the Senior Clerk up here to interpret it.
CHAIR —Order! I am the chair here.
Senator McLUCAS —You do not even know what—
CHAIR —Order! If I need to stand I will stand. Order, Senator Boswell! You can take this matter further if you want, and we will have a private meeting. I am going to rule that there is a bill before the Senate committee, which means that the Senate has given this committee the task of conducting an inquiry specifically into that bill. My view is that this indicates an intention that any inquiry into the provisions of the bill will be conducted at hearings specifically designed to hear on the bill at meetings of the committee specifically designated for that inquiry and will not be pursued at estimates hearings which interested Senators might not be able to attend and for which there is usually no notification of such subject matters for the inquiries. If you have further questions about wild rivers legislation then I am directing you—
Senator BOSWELL —You are absolutely terrified of this—
CHAIR —I am directing you—
Senator BOSWELL —because Noel Pearson has got your number.
CHAIR — to put your questions through that committee process. Do we have questions of the National Native Title Tribunal?
Senator LUDLAM —I do, Madam Chair.
CHAIR —Thank you, Senator Ludlam.
Senator LUDLAM —I have just a couple that probably will not take too long. I was wondering whether you could confirm for us whether there has been a proposed reduction in the last budget in the number of registries from four to two at the Native Title Tribunal—is that correct?
Ms Fryer-Smith —Sorry,: that has not been proposed?
Senator LUDLAM —Has it happened or is it about to happen?
Ms Fryer-Smith —It is proposed, yes, as a result of the reductions in funding which the tribunal will be receiving next financial year and in the out years of the current budget cycle.
Senator LUDLAM —I do not think that this has been canvassed so far in this session. Can you sketch for us with a broad brush what those reductions in funding mean to the tribunal?
Ms Fryer-Smith —What they mean to the tribunal?
Senator LUDLAM —Yes.
Ms Fryer-Smith —Perhaps I can tell you to begin with what the quantum of the reductions is—and these figures related to the projected appropriation in last year’s PBS. In the next financial year it will be $3.5 million; in 2011-12 it will be $4 million; in 2012-13 it will be $4.5 million; in 2013-14 it will be $5 million. The amount that we will receive next year in revenue will be adjusted so that the impact of the $3.5 million cut will be ameliorated somewhat. But we have made decisions in relation to a number of measures that we trust will enable us to deal with those reductions. Unfortunately, it will mean at this point closing our Darwin registry and amalgamating it or, more correctly, transferring the functions to that of the South Australian registry.
Senator LUDLAM —That is extraordinary. What are those cuts as a proportion of the overall budget of the tribunal?
Ms Fryer-Smith —Next year it is 7.7 per cent, I think. I am sorry—
Senator LUDLAM —No, that is okay. Allow the officers to look that up if you like. Has that been reflected or is it reflective of a reduction in the case load or the amount of work that is being performed by the tribunal?
Ms Fryer-Smith —Not to my knowledge, no. You would probably best address that question to the department. In fact the workload of the tribunal has maintained a steady rate, so I really think that question is best addressed to the department.
Senator LUDLAM —I will do that. As I am doing that, can you tell us what kind of metrics we use to ascertain the workload of something like the Native Title Tribunal?
Ms Fryer-Smith —We have a range of outputs, and I can tell you what they are if you like.
Senator LUDLAM —Yes. I guess what I am looking for—I will then be happy to turn some of those questions over to the department—is whether there is any sign of whether the workload has been going up or down and how you measure that. They are really quite significant cuts for an agency such as this.
Ms Fryer-Smith —In our view, and according to our records, the work has remained steady in a number of areas. We have mandatory functions under the Native Title Act, which relate to the registration of claimant applications and the registration of Indigenous land use agreements. The work in relation to the registration of claimant applications has remained fairly steady, although claims are disposed of at varying rates every year through a variety of court orders. New claimant applications continue to be lodged, and so the registration function, which is a very technical and complex one, continues at a fairly steady rate. In relation to the Indigenous land use agreements, again there are quite complex and technical processes and procedures relating to the registration of those agreements, and that has been building steadily, particularly in the states where there is most native title related activity. In a volume sense that is Queensland and Western Australia, and there is significant work in South Australia as well.
Senator LUDLAM —Do you have to hand, or can you table for us, the proportion of the casework state by state, or through a state and territory breakdown?
Ms Fryer-Smith —We publish a national report.
Senator LUDLAM —Is that just in your annual report?
Ms Fryer-Smith —Yes, it is our own report.
Senator LUDLAM —Sorry—is that an annual report?
Ms Fryer-Smith —It is in our annual report, yes.
Senator LUDLAM —So it is fairly easy to get hold of. The mining industry frequently cites delays in native title processes as noisy complaints and reasons for things not proceeding. I must admit that I am a bit perplexed as to why cuts to the tribunal have been so severe. Were you consulted—presumably by government—in the process of these shifts to your funding?
Ms Fryer-Smith —Yes, we were. We had discussions in late September and early October last year and a number of scenarios were put to us in relation to possible funding reductions. Ultimately, the reductions are in the quantum that I outlined a few moments ago.
Senator LUDLAM —From a Western Australian perspective I think this is—it used to be and it probably still is—the only Commonwealth agency that has its headquarters in Perth.
Ms Fryer-Smith —There is one other, actually.
Senator LUDLAM —What is that?
Ms Fryer-Smith —The National Offshore Petroleum Safety Authority.
Senator LUDLAM —I trust that we are not cutting its budget. What will this mean for native title processing of claims in Western Australia? What does it look like for the agency?
Ms Fryer-Smith —The scheme is a national one. We do have our principal registry located in Perth, as you just indicated. But, of course, it will have implications for us. For a start, we will no longer have a local presence in the Northern Territory, which clearly is a decision we were reluctant to make. We like to be able to provide services at a local level. So the impact will be felt nationally. It is imperative, of course, for us to carry out our mandatory statutory functions—the ones that I just outlined relating to registration, for example—and also our arbitration function under the future act regime, mediation for future act applications and so on. Where the impact will be felt most, apart from the closure of the Darwin registry, is around what we call our assistance function. We provide a wide range of assistance to parties and persons who are involved in the native title system by way of getting back to the registration function, by way of preliminary assessments and by helping potential applicants to look at the claim and to assess it. By having inevitably to cut down on the assistance function and also our capacity-building function, the tribunal is very concerned that there will be displaced costs, in the sense that other parts of the system will bear the brunt.
Senator LUDLAM —Presumably you put these arguments to government in the course of the negotiations that you are describing to us?
Ms Fryer-Smith —Yes, we did.
Senator LUDLAM —And we have seen the result. Also, presumably, these claims will not go away, the system will not stop working and people will not stop applying and making claims. Is the most important consequence, apart from the closure of the Darwin office, just that things will slow down?
Ms Fryer-Smith —It is hard to predict exactly. I might add that the budget cuts that we will receive next year and in the out years come on top of budget reductions that we had in the current financial year. So we have already put in place a number of measures and mechanisms to cope with a reducing appropriation. I am happy to tell you what they are if you wish. We are trying to optimise our work force. At the moment we are having a structural review of the organisation, which is almost completed, and we hope that that will enable us to have a structure that is more flexible than the current one and better able to deal with a very dynamic native title environment. As you may be aware—I am sure that you are aware, Senator—there were significant changes to the Native Title Act last year, which had the potential to dramatically affect our function. So we have been taking a range of measures to reduce our staffing—preferably, of course, and up to date through natural attrition—and to strategically reposition ourselves to deal with the challenges that we are facing both from a budgetary perspective and also from the perspective of changes to the legislation.
Senator LUDLAM —So there is quite important law reform going on at the same time as your budget is being cut. Without asking you to justify the cuts—obviously that is not appropriate and it would not be your role—what reasons have you been given for the cuts to the tribunal being so severe? They are certainly not workload related as far as I can tell.
Ms Fryer-Smith —I understand that the PBS indicates that a significant proportion of the reductions will be going to the government’s Access to Justice initiative.
Senator LUDLAM —Which we strongly support and for which I have been arguing for several years. So we have taken land titles out of the Native Title Tribunal and we have given it to Access to Justice, which I think most commentators would support. But that reason does not go at all to your functions or to the performance of your role. Why has the Native Title Tribunal been picked on? Why not something else?
Ms Leon —It might be more appropriate for the department to help you with that question.
Senator LUDLAM —I would appreciate that.
Ms Leon —I should say that, in order to fund the Access to Justice package, there was not an arbitrary selection of the Native Title Tribunal as part of the participation in funding that package. Funding was reduced to the native title tribunal in recognition of its decreased role under the amendments that the tribunal has just referred to. There was a reasonable basis for reducing funding to the tribunal in anticipation of its reduced function under the new amendments.
Senator LUDLAM —So the reduced function, as you say, is anticipated, because we just heard that the workload of the tribunal has not reduced. So it will be shedding staff in anticipation of the workload reducing. What happens if that turns out not to be the case?
Ms Jones —The reform to the system went through the parliament last year. It has been a process over the last three to four months of the Federal Court working with both the tribunal and the broader native title sector to determine prioritisation of particular claims with a view to trying to accelerate the disposition of a range of claims in the system. That work has been underway over the last three to four months and I think the Federal Court in the very near future will be in a position to set out a program of how it will prioritise all these claims and it will be able to indicate that publicly. That will give a clearer indication of how we see the workload changing in light of the Federal Court processes and the impact on the Native Title Tribunal.
CHAIR —Senator Ludlam, do you have more questions of the Native Title Tribunal after dinner?
Senator BARNETT —Yes, I do.
CHAIR —Senator Ludlam, do you have questions after dinner?
Senator LUDLAM —I could go a little further, but I might have to be somewhere else.
CHAIR —Senator Barnett, you do have questions?
Senator BARNETT —Yes.
CHAIR —We will ask you to come back.
Proceedings suspended from 6.31 pm to 8.00 pm
CHAIR —We will reconvene. We have officers from the National Native Title Tribunal before us so we will continue with questioning there. I think Senator Ludlam said he would try and get back, but he also has another committee has to get to, so we might go to Senator Barnett for questions.
Senator BARNETT —Thanks very much. Ms Fryer-Smith, it is good to see you again; thanks for being here. Senator Ludlam has asked a number of questions that I want to cover, so that is advantageous and helpful in terms of the budget cuts and how it is impacting on your operations and your different offices around Australia, including in Darwin. The other part to this is: how is this going to affect your determined approach, as you have expressed in previous estimates committees, to dealing with the backlog for native title claims? In previous committees you have expressed concern, as have I and others, about the backlog. I am wondering if you can share how it is going to impact on this because the government has expressed a view in the past that this is a priority area that needs to be addressed. Now suddenly you are getting cut I think $17.1 million over four years.
Ms Fryer-Smith —That is right.
Senator BARNETT —Is that correct?
Ms Fryer-Smith —Yes. That is correct, Senator.
Senator BARNETT —Can you just give us a feel of the impact in terms of addressing the backlog?
Ms Fryer-Smith —That may be a question that is better addressed either to the department or the Federal Court, because with the changes to the act last year the tribunal no longer has the central role in mediating native title claims. Therefore, the government and the tribunal, and all participants in the native title system, are committed to resolving native title matters by agreement rather than by litigation. But the tribunal no longer has the central role in mediating claims. In fact, fewer than half of the claims are currently with the tribunal for mediation in any event.
Senator BARNETT —Where are they? Do they go to the Federal Court now?
Ms Fryer-Smith —They are with the Federal Court, yes. Either mediation has ceased or they have not been referred to mediation. But we have, I think, 47 per cent, or 203, of the claims which have been filed in the Federal Court with us for mediation.
Senator BARNETT —All right. Would you say that the plans that were put in place last year, and the legislation that was passed to move those mediation efforts through to the Federal Court, have ensured that the tribunal can save $17.1 million over four years, or is that only part of the picture and you are saving money in other parts of your operations?
Ms Fryer-Smith —Yes, Senator. We have introduced a range of measures, which I am happy to explain to you, in order to deal with the funding reductions. These measures that we are in the process of introducing now for the coming financial year and the remaining years of the current cycle will be put in place over the next few months. They build on the measures that we put in place last year when we faced reductions in approximately the same quantum.
Senator BARNETT —Can I be reasonably specific with you?
Ms Fryer-Smith —Sure.
Senator BARNETT —In terms of the mediation which has gone to the Federal Court, what proportion of the cuts will that cater for? Is it about half, is it most of or a limited proportion?
Ms Fryer-Smith —I am sorry if I am not answering in exactly the way that you are wanting me to, Senator, but it is a bit complicated. When you say the mediation has gone to the Federal Court, the changes that the act put in place last year gave the Federal Court complete discretion to refer mediation to parties external to the court or to the tribunal—or, indeed, for matters to be mediated within the court itself. Prior to that, pursuant to the 2007 amendments, the tribunal was vested with the responsibility for mediating native title claims. The 2009 amendments turned that around. In fact, there has been a small reduction in the matters which are with us for mediation in the last eight months since the amendments were operationalised. So, in effect, we are still carrying almost the total mediation load that we had before. Naturally, it is a mandatory responsibility under the act, so it is one that we will put our full resources into as much as we can. But, yes, we are making other cuts in other areas.
Senator BARNETT —Well, in light of the time, can you reasonably precisely indicate where the cuts will occur and specifically advise in terms of staffing levels how that will be impacted?
Ms Fryer-Smith —Yes. I will let you know now, Senator, that our guiding principle has been to apply our resources to carry out our statutory functions and to finance a high level of service delivery. We want to maintain a presence in as many areas as we can. I have already flagged that we will be closing the Northern Territory registry in Darwin as soon as practicable and merging that with the South Australian registry to become a central Australian registry. We are going to give up additional lease space in one of our buildings in Perth and transfer employees to our principal registry.
In terms of staffing, I mentioned before that we are having a structural review to enable us to have a more flexible and appropriate structure to deal with the new environment in which we find ourselves. We have suspended all current advertised vacancies pending the implementation of the restructure. We are only filling business critical vacancies at this time. We have a relatively high proportion of non-ongoing contracts, which is a policy position that we adopted some time ago. So undoubtedly we will be letting all non business critical, non-ongoing contracts expire. We are also putting in place measures to call for voluntary redundancies. We hope to call for expressions of interest in up to 20 voluntary redundancies in the next little while. We are also rationalising—
Senator BARNETT —What does a ‘little while’ mean? Six months, 12 months?
Ms Fryer-Smith —Within a month or two.
Senator BARNETT —So this has caused considerable angst or grief or certainly urgent action at your level to make these cuts work?
Ms Fryer-Smith —Certainly. We are mindful of the need to keep the morale of our staff and members as high as possible, so we are keeping them fully informed. We are talking with the union and generally. But we have really been on an expenditure constraint or restraint operating basis for over a year now.
Senator BARNETT —Okay.
Ms Fryer-Smith —I might add, Senator, that we will have to go into deficit to fund some of these.
Senator BARNETT —Really? What level of deficit are we heading into?
Ms Fryer-Smith —We are going to have to have resort to our accumulated surpluses; probably in the region of about $5 million.
Senator BARNETT —When would that kick in?
Ms Fryer-Smith —That will be in this financial year, or 2010-11.
Senator BARNETT —So this coming financial year, obviously?
Ms Fryer-Smith —Yes.
Senator BARNETT —So where is this money coming from?
Ms Fryer-Smith —From our accumulated surpluses, Senator.
Senator BARNETT —How much is in your accumulated surpluses?
Ms Fryer-Smith —About $17.1 million, Senator.
Senator BARNETT —And did the government know this when the decision was made that that requirement was—
Ms Fryer-Smith —You would have to address that question to the department, Senator.
Senator BARNETT —Sure. When these cuts were envisaged and announced, was it envisaged that you would go into deficit or is this a decision that you have made subsequent to the cuts?
Ms Fryer-Smith —We have informed the department at all times that that would be required.
Senator BARNETT —Right. So you kept them fully informed?
Ms Fryer-Smith —Yes.
Senator BARNETT —Mr Wilkins, were you aware that the tribunal would go into deficit to facilitate the cuts of $17.1 million over four years?
Mr Wilkins —No, I was not. But I will let Katherine Jones answer that question, Senator.
Ms Jones —Senator, in terms of the specifics of the actions that the tribunal would need to take in terms of managing the reduced funding in the forward years, there have been some conversations, obviously, between the registrar of the tribunal and myself in relation to how the tribunal might do that. I suppose the significant point to make is that the tribunal had accumulated a significant surplus over a period of time. There was a period of four or five years where it operated with a surplus. It was not required to return that surplus to consolidated revenue, but it was retained within the tribunal.
Senator BARNETT —Does the department perhaps intend to return that accumulated surplus to the department rather than leave it within the tribunal? Is that a plan for the department?
Ms Jones —Senator, there was a review of funding in the native title system in 2008. There was consideration of funding pressures across the system as a whole. The outcome of that review was that a decision was taken in the previous budget to reallocate some money from the tribunal to other areas of the native title system that was seen as having a greater need for additional funding, given that the tribunal had not been expending its full appropriation. That was accompanied by additional funding in the 2009-10 budget of $50 million. An amount of $46 million went to native title representative bodies and $4 million came to this department to enable it to fund strategies to increase the number of anthropologists in the native title system.
Senator BARNETT —Of your so-called savings, which are cuts, of $17.1 million over four years, where will that money now be expended? Is it going to the Federal Court for their mediation services, is it going to somewhere else or is it just simply an efficiency measure to address the blow-out in the government debt?
Senator Wong —Actually, Senator, you would probably want to rephrase that. The budget actually delivers a reduction in debt and returns the budget to surplus within three years. I do not think it is a blow-out.
Senator BARNETT —Minister, we know how big the deficit is. It is the second largest since World War II. But thanks anyway for your contribution.
Senator Wong —And the lowest of any advanced economy of the world, Senator, so we can have that discussion if you would like.
Senator BARNETT —We could.
Senator Wong —I do not particularly want to have it, but I think if you are going to put something to a witness, it should at least be accurate.
Senator BARNETT —It is accurate, thank you.
CHAIR —Is that a question, Senator Barnett?
Senator BARNETT —I am waiting on Ms Jones’s response. She is just checking her papers.
Ms Jones —In terms of the savings in relation to the NNTT, at this stage there is no decision in terms of reallocating to the Federal Court. They were just savings and efficiencies that contributed overall to the portfolio budget.
Senator BARNETT —Thank you. I want to move to another area. Ms Jones, in evidence earlier you indicated with respect to the Queensland Wild Rivers Act that your advice to this committee was that it did not affect native title rights. Are you aware that some people—in fact, some experts, some lawyers—would say that that is a narrow view of native title rights? Are you aware that other people have a different opinion to your own on that matter?
Mr Wilkins —What is the wider concept, Senator?
Senator BARNETT —Ms Jones gave evidence, I think before the break, in terms of native title rights. We were discussing that earlier. The evidence was that the Wild Rivers Act in Queensland did not affect native title rights. I am responding to that comment and asking a further question about that advice that Ms Jones provided.
Mr Wilkins —I regret that I was not here. But I find it difficult to see how a state act could override a Commonwealth act.
Senator BARNETT —This is relating to native title rights. I am asking Ms Jones for her opinion.
Mr Wilkins —Native title rights are ensconced by deed of a Commonwealth statute, so I am just wondering how a state statute would override that.
Senator BARNETT —Well, this is the question.
Senator Wong —Senator, I was not here before the break. I understand evidence was given. I also understand Ms Jones has appeared before another committee of the Senate in relation to the Leader of the Opposition’s private member’s bill. I think the question you are asking her is to engage in an argument about whether her advice is correct. She has given her evidence on that. There are others, you say, who have a different view. I am not aware of that but I am not sure how this witness can respond to this other asserted set of views in the abstract.
Senator BARNETT —Well, I think it is a legitimate question. I appreciate your comment, Minister. Let me make it clear I am not asking about a bill before the parliament, because that is in breach of standing orders, as you have indicated. We had that discussion before the break. What I am asking Ms Jones about is the evidence that she put to the committee before the break where she indicated that the Queensland Wild Rivers Act did not, in her view, breach and did not affect native title rights.
Senator Wong —What are you asking her about that? Has she changed her mind?
Senator BARNETT —No. I am wanting to explore that issue with Ms Jones. She has expressed an opinion. I would like to explore that opinion with her.
CHAIR —Ms Jones will also be aware that, as the chair, I have ruled that because the Wild Rivers Act is currently before this committee for inquiry, it is appropriate that any questions in relation to that legislation be put to that inquiry in the right forum with the right people present so that any evidence we receive can be put towards our report, which is not due to be tabled until 30 June.
Senator BARNETT —Ms Jones, could you provide any reason to back up your opinion that the Wild Rivers Act in Queensland does not affect native title rights?
CHAIR —Senator Barnett, as I said, I am not accepting that that question is in order for this current committee inquiry. So perhaps if Ms Jones wants to take it on notice, she could provide that answer to the committee secretary for the purposes of the deliberation of our inquiry.
Mr Wilkins —I gather that Ms Jones, Senator, has already given you her reason and has nothing further to add, really. Section 44(2) of the Wild Rivers Act confirms that the wild rivers declaration is given effect and the other Queensland acts cannot directly or indirectly limit a person’s native title rights or interests.
CHAIR —So if you have other questions to the National Native Title Tribunal, Senator Barnett, let us proceed.
Senator BARNETT —Minister—
CHAIR —I have ruled these questions out of order. We currently have an inquiry before us.
Senator BARNETT —That is right.
CHAIR —If you want to choose to ask questions about that legislation, do it in the right forum at the right time.
Senator BARNETT —Minister Wong indicated that she was not aware of anybody else having a view contrary to that of Ms Jones. I put it to you, Minister, that there are a range of key stakeholders that have a contrary opinion to Ms Jones. I want to make you aware of those people, who include Noel Pearson. He has expressed his view extensively not just in Queensland but in other forums, including in other places.
Senator Wong —Senator Barnett—
CHAIR —Probably, in a more appropriate place, Ms Jones is part of that. But we will not go there tonight.
Senator Wong —Thank you, Chair. I would like to briefly respond, given that intervention. What I was responding to, Senator, was you putting a range of unspecified assertions about others’ views to Ms Jones without outlining them to her. That is what I was responding to.
Senator BARNETT —Would you like me to outline them, because I would be happy to?
Senator Wong —No. Then I went on to make the point that, leaving aside the standing order issue, which I understand the Chair has ruled on in my absence, she has put a view about her opinion. I am not sure how it assists or whether it is appropriate for her to be quizzed about what another person unspecified might say which may or may not go to the same issue about which she has expressed her view.
Senator BARNETT —Sure. I was responding, Minister, to your comment that you were not aware of others who had a different opinion. I am alerting you to the fact that there are others who have a strongly different view.
Senator Wong —That was not actually what I was saying, Senator.
Senator BARNETT —Well, that is what is in the Hansard.
Senator Wong —I cannot help it if you find it difficult understanding.
CHAIR —Are there any other questions of the National Native Title Tribunal?
Senator BOSWELL —I want to express my concern that these questions, which are important, should not be allowed to be asked under some absolutely spurious suggestion that the bill is before a committee. That is nonsense, and you know it. We have often addressed bills that are before committees. I register my protest. I think you are wrong; I think you are terrified of Noel Pearson.
CHAIR —We will not go to Noel Pearson’s comments and behaviour, Senator Boswell. You know all too well the background we have been dealing with recently. Perhaps if my secretary can provide me with the advice from the Clerk that we received prior to dinner, I shall table it and we will distribute it. We will possibly incorporate it in Hansard as well. It is advice from the Clerk of the Senate regarding the procedures before estimates when a bill is before a Senate committee. I have read it and I will not repeat it again, but I think we will table this advice about questions about the provisions of bills.
Your questions may well be valid. The point that I am putting and ruling on as Chair on this advice is that the provisions of the bill will be conducted at hearings and meetings of the committee specifically designated for that inquiry. That is not the purpose of the Legal and Constitutional Legislation Committee this evening. So if you have further questions, Senator Boswell—
Senator BOSWELL —I have got no further questions.
CHAIR —in relation to wild rivers, please provide them to the committee secretary and we will deal with them in the course of that committee inquiry. In the meantime, I think we will get those three paragraphs distributed for everybody and incorporated into Hansard.
The document read as follows—
It might be useful to set down the substance of the advice I gave yesterday on whether questions could be asked at estimates hearings about the provisions of a bill which is before a Senate committee.
Under a resolution passed by the Senate in 1999 (adopting a report of the Procedure Committee), the Senate delineated the scope of questions at estimates hearings as “any questions going to the operations or financial positions of departments and agencies”. While this is a very wide ambit, I do not think that it extends to questions about provisions of bills, for example, questions about the meaning, purpose, intention or effect of clauses in bills. Questions about departmental operations connected with bills would be relevant, for example, whether a department engaged consultants to assist in the preparation of a bill, at what cost it was prepared, and how it is to be administered.
When a bill is before a Senate committee, this means that the Senate has given that committee the task of conducting an inquiry specifically into that bill. This indicates an intention that any inquiry into the provisions of the bill be conducted at hearings and meetings of the committee specifically designated for that inquiry, and not pursued at estimates hearing which interested senators might not be able to attend and for which there is usually no notification of such specific subject matters or inquiries.
CHAIR —There are no other questions to the National Native Title Tribunal. Ms Fryer-Smith, thank you very much for being here this morning.